Category Archives: Water Quality

Proposed Rule Changes Could Fast Track Pipelines

The EPA plans to rewrite the Clean Water Act, limiting the amount of time states and tribes may take to review new project proposals, and allowing the federal government to override states’ decisions to deny permits for projects in some situations. The change was announced by the EPA on August 9, 2019, and follows on an April executive order from President Donald Trump.

See detailed coverage of the story by Inside Climate News and Utility Dive.

Bradley Campbell, president of the Conservation Law Foundation, is quoted in the Inside Climate News article, saying, “This proposed rule change would hobble the most important tool that states have to protect significant waters, from prized trout streams to essential drinking water sources.”

DEQ Issues Stop Work on 2-Mile Section of MVP

Following is a statement issued by the Virginia Department of Environmental Quality on August 2, 2019.

Contact: Ann Regn, 804-698-4442, Ann.Regn@DEQ.Virginia.gov

DEQ ISSUES STOP WORK ON APPROXIMATELY TWO-MILE SECTION OF MOUNTAIN VALLEY PIPELINE

All ongoing clearing, grading and trenching must stop in this designated area

RICHMOND, Va. – The Virginia Department of Environmental Quality (DEQ) has issued a stop work instruction to Mountain Valley Pipeline, LLC (MVP). The instruction is based on issues identified during DEQ inspections that cite insufficient erosion and sediment controls on approximately a two-mile section of the project in Spread H in Montgomery County.

Based on a DEQ inspection conducted on Thursday, Aug. 1, the agency has determined that an imminent and substantial adverse impact to water quality is likely to occur as a result of land-disturbing activities. Specifically, MVP has failed to construct and maintain erosion and sediment control or pollution prevention measures in accordance with approved site-specific plans and/or the erosion and sediment control measures that have been installed are not functioning effectively and MVP has not proposed any corrective action.

Work in this section will be suspended until these corrective actions are installed and approved by DEQ through field inspection and verification. MVP must stop all land disturbing activities in this area including clearing, grading and trenching activities in the designated area. The only activity currently authorized in this area is work necessary to install and maintain erosion control devices as required by the approved site-specific erosion and sediment control plans, and the annual standards and specifications.

“We are appalled that construction priorities and deadline pressures would ever rise above the proper and appropriate use of erosion control measures,” said DEQ Director David Paylor. “DEQ will continue to monitor and inspect all ongoing work to ensure continued compliance and protection of Virginia’s natural resources.”

For more information and the full stop work instruction, visit www.DEQ.Virginia.gov/MVP

Press coverage in the Roanoke Times is here. The Roanoke Times article says, “Environmental advocate Russell Chisholm said in a release that he was ‘appalled’ that the company’s skimping on control measures to advance the project surprised the DEQ. Citizens have repeatedly reported similar lapses in permit compliance for at least a year.”    His statement noted that “In response to citizen reports, ‘those in positions of power chose to ignore our calls for real, meaningful enforcement through a stop work order and instead allowed MVP to work despite several missing federal permits, a pending lawsuit for violations, and at least 35 Notices of Violation in West Virginia.'”


An additional blow to MVP on August 2, 2019, came from federal district court Judge Elizabeth Dillon, who denied the pipeline company’s request for an order removing tree sitters on the route.  See Jonathan Sokolow’s report.

Deadline July 27 – Submit Comments

Deadline July 27, 2019: Submit your comment to the Army Corps of Engineers to stop fracked-gas pipelines from blasting through West Virginia rivers.

When West Virginia regulators initially considered the Clean Water Act permits needed for the Atlantic Coast (ACP) and Mountain Valley Pipeline (MVP) in 2017, they decided to place three strong but reasonable requirements on pipeline companies, above what the Army Corps required, in order to protect the state’s valuable water resources. These reasonable measures would have prevented pipeline construction from impeding the movement of fish and would have limited pipeline construction across major rivers like the Gauley, Elk, and Greenbrier to 72 hours. They would also make large diameter pipelines like ACP and MVP ineligible for the one-size-fits-all review process, requiring them to undergo an individual review process.

The Chesapeake Climate Action Network argued — and the court agreed — that MVP had no plans to comply with West Virginia’s 72-hour time limit when crossing major rivers, and that this failure meant that the entire permit, not just as it applied to specific crossings, was defective. After this decisive court decision rejecting MVP’s permit, the Army Corps voluntarily threw out its permit for the ACP too.

But now the West Virginia Department of Environmental Protection is trying to rewrite its own rules and remove the environmentally protective conditions they placed on projects like the ACP and MVP.

The Army Corps of Engineers is asking for the public’s opinion on whether it should accept attempts by West Virginia regulators to modify the conditions they put in place to protect water quality. This request places the Corps in an untenable position, asking the Corps to commit an unlawful act and to be drawn once more into a time-consuming and expensive conflict over the proper regulation of the two proposed fracked-gas pipelines.

The Corps is only accepting comments until Saturday, July 27, 2019. Time is running out. Write to the Corps TODAY to ask them to SAY NO to West Virginia’s illegal request.

CLICK HERE to use Chesapeake Climate Action Committee’s email letter, but please be sure to customize the email with your county and state and include any other concerns you may have.

Not One New Report, But Two


Not one, but two, recently released reports by physicians discuss and document the health risks, both immediate and long-range, of fracking and fracked gas.

A collaboration of health professionals with the Washington and Oregon chapters of Physicians for Social Responsibility have spent many months synthesizing and reviewing research and data, making new findings and conclusions on the threat of fracked gas infrastructure in the Pacific Northwest and how elected officials should respond to the crisis at hand. The report discusses impacts to fishing, safety hazards from facility and pipeline malfunctions, mental health stress on people who may lose their homes and jobs to eminent domain or habitat destruction, and more. Specific case studies include the Jordan Cove LNG project in Oregon and the Tacoma LNG facility and Kalama Methanol refinery in Washington State. Download a PDF of their report, Fracked Gas: A Threat to Healthy Communities. Press coverage is here.

Meanwhile, another review by doctors and scientists of 1,778 articles from peer-reviewed medical or scientific journals, investigative reports by journalists, and reports from government agencies on fracking concludes that the industry poses a threat to air, water, climate, and human health. Physicians for Social Responsibility and Concerned Health Professionals of New York, found that 69 percent of studies on water quality during the same time period found evidence of or potential for fracking-associated water contamination, and 87 percent of studies on air quality found “significant air pollutant emissions” associated with the industry. Their report also examines studies on the natural gas industry’s impact on climate change, and finds that due to methane leaks, natural gas extraction could be contributing to global warming even more than coal. Download their report, Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking. Press coverage is here.

Note also the earlier 2017 report from Physicians for Social Responsibility, Too Dirty, Too Dangerous: Why health professionals reject natural gas.

Reviewing the SWCB’s Actions (or Lack Thereof)

Writing in the Virginia Mercury on March 5, 2019, Robert Zullo flatly states, “Citizen oversight of Virginia’s environmental regulations increasingly looks like a farce.” After an hours-long closed session on March 1, 2019, the Virginia State Water Control Board emerged with a unanimous decision to rescind its earlier call for a hearing on rescinding the Mountain Valley Pipeline certification. When called on to explain the decision, Board members fumbled through a few flimsy explanations and excuses before adjourning the meeting and fleeing the room behind a wall of state troopers. According to Zullo, “One audience member loudly pointed out that the cops would be more useful lined up at the base of mountains in southwest Virginia to stop the mud running off the pipeline job sites.”

Despite numerous well-documented Virginia violations and the prior poor compliance history of the construction contractor, continues unabated, MVP construction continues unabated, fouling private property and waterways with uncontrolled sediment.

Zullo says of the SWCB, “Their logic, evidently the best they could come up with despite so much time to get their story straight, went something like this:

  • We do not have the authority revoke the certification (which is odd, because the certification itself says “This certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”)
  • If we did revoke the certification that we don’t have the authority to revoke, we would lose all the conditions that we placed in that certification (which are obviously doing a bang-up job of preventing environmental damage).
  • If we revoke the certification we don’t have the authority to revoke, the Federal Energy Regulatory Commission will disregard the action and allow construction to continue anyway.”

Zullo’s article concludes, “Between the water board debacle and Gov. Ralph Northam’s interference with the air board, removing two members seemingly to ensure that the board didn’t reject a crucial permit for a compressor station that is part of Dominion Energy’s Atlantic Coast Pipeline, citizen oversight of Virginia’s environmental agency and the regulations it enforces is looking increasingly like a sad farce. To perform their proper role, they need to be determined, independently well-versed on the issues and, perhaps most importantly, unafraid of upsetting the apple cart in a state where going along to get along when big business is involved is par for the course. Lately, they don’t seem up to the job.”

Read the full article here.

An editorial in the March 7, 2019, Roanoke Times says Something’s not right with water board, and, quoting Sokolow, asks:

  • “‘If Virginia had no authority to revoke its Section 401 permit once it issued it in December 2017, why did Mark Herring’s office approve of language in that permit expressly saying that Virginia could revoke the permit?’
  • “‘If it is so obvious that federal law prevents Virginia from revoking the MVP permit, why did it take Mark Herring 14 months to discover that the advice he gave in 2017 was not valid?’
  • And, finally: ‘Why have the board and Mark Herring not lifted a finger to do what they clearly do have the power to do, and issue a stop work order — or seek a court injunction to do so? If Virginia’s stop work statute does not apply to a situation where a pipeline company is under criminal investigation, has been sued by the state for more than 300 documented violations, and there is a record of ongoing violations, then when would it ever apply?'”

The editorial concludes, “Those seem good questions — which deserve good answers. Or even any answer.”

The Water Board Did What?!

Back in December, new member of the Virginia State Water Control Board, James Lofton, made a motion to explore revoking the SWCB permit for the Mountain Valley Pipeline. Lofton was appointed to the Board by Governor Ralph Northam following his removal of Roberta Kellam, after she raised serious questions about the damage being wrought by MVP to the water and land resources of southwest Virginia. Lofton’s motion passed the seven-member Board on a 4-3 vote. Eleven weeks later – weeks during which MVP construction continued, with continued damage due to inadequate erosion and sedimentation control – the SWCB finally had a meeting to discuss the possible process for revoking the permit.

Before the March 1, 2019, meeting, MVP sent a letter to the Department of Environmental Quality in which, according to Blue Virginia, “MVP not only objected to the Board commencing a revocation process, but argued that the Board had no authority to do so (“Unilateral action by the board at this time cannot amend or invalidate that license or otherwise block construction”), and that MVP would sue the Board if it went any farther. In a stunning demonstration of corporate arrogance, MVP told the Board that if Virginia actually revoked the state permit, MVP would simply ignore the action and continue construction anyway as long as it had a federal permit.”

Attorneys representing 10 local, state, and regional organizations (including the Southern Environmental Law Center and the Chesapeake Bay Foundation) sent a letter on February 28 to the members of the Virginia State Water Control Board, urging the Board to start promptly a process to revoke the water quality certification issued for the Mountain Valley Pipeline (MVP). At the same time, the attorneys strongly urged the Board to use enforcement tools available to it to stop work on the pipeline while the revocation process goes forward. Responding to claims in the MVP letter, the attorneys stated, “The State Water Control Board (Board) has the authority to revoke the water quality certification for upland activities that it issued to Mountain Valley Pipeline, LLC (MVP). The violations MVP has committed and the damage it has done easily meet and exceed the thresholds defined in Virginia law upon which revocation may be based.” The letter also asked that “the Board to take all possible steps to stop work on this project immediately.” The permit itself expressly says that “[t]his Certification is subject to revocation for failure to comply with the above conditions after a proper hearing.”

At the March 1 meeting, a junior attorney from Herring’s office told the Board that MVP was right and that the Board had no authority to revoke MVP’s permit. The junior attorney gave this “advice” despite the fact that Herring’s office had probably written (and had certainly approved) the permit, with language stating that the SWCB does have the authority to revoke it.

The SWCB went into a four-hour closed session shortly after convening their meeting. Virginia Mercury reported that when the public meeting finally resumed, Lofton said “he had deep concerns about the pipeline project’s erosion and sediment control measures but was also worried the state couldn’t revoke the permit. ‘Based on advice of counsel and statute, I do not think the board has the authority to revoke this certification.'” He continued, “The board is very sympathetic to landowners and those opposed to the pipeline, but I’m deeply concerned we would lose the 16 conditions that are in the 401 certification if we attempt to revoke the certification. I simply cannot find the board has the authority to revoke this permit.”

Chairwoman Heather Wood tried to further explain, saying revocation of the permit by the board would “handcuff” the state’s ability to impose additional requirements on the project – and then adjourned the meeting.

In a DEQ statement released after the meeting, Wood said leaving the certification “puts additional protections in place that would not be as strong under sole federal oversight.” Removing it would have “jeopardized the commonwealth’s oversight” of the pipeline project, she added. “This was a unique situation that required time to ensure the proper legal process was and continues to be followed,” Wood said. “The board extensively reviewed all available options to continue enforcement and monitoring of this project to ensure compliance with the conditions of the 401 certification and protection of water quality.”

What happened? MVP told DEQ that they would continue with construction regardless of whether their permit was or was not revoked, and the SWCB decided that they would leave the permit in place. It remains to be seen whether SWCB and DEQ will enforce any of the permit conditions, or whether the suit brought in early December against MVP by Attorney General Mark Herring will have any effect on a corporation that says it will continue to do whatever it wants.